Acct 215 Business Law Exam 2

Exclusionary rule (fairness)

any evidence that is obtained in violation of the accused's constitutional rights is automatically excluded at trial

Indemnify

any losses a big corp. because of a product, then the manufacturer must be responsible for some of it. (Walmart and Nike)

Danger invites rescue

just because a 3rd party was negligent does not relieve defendant of liability if he created danger that invited 3rd party rescue

Fraud

knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment

Identity theft

knowingly transfer or use another person's identity without authorization with the intent to commit a crime

General damages

not calculated by a precises model but meant to compensate plaintiff

Contributory negligence

plaintiff contributes fault then he is out of here

Assumption of risk

plaintiff entered the situation knowing the risk (part of the game)

Tort of Negligence

plaintiff is injured because of defendant's breach of a duty of care

Vicarious liability

occurs when 1 person is made liable without personal fault for the bad conduct of someone else

Responsible corporate officer doctrine

officers may also be criminally liable for criminal acts of employees, even if they didn't know about the act, if he or she fails to meet their responsibilities as corporate leaders to ensure compliance with the law

Tortfeasor

one who commits a tort

Slander

oral defamation

Search warrant

order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property

Self defense

person may be justified in using force against another person, but there are limits

Tippee

person who gets the tip, only liable if they knew the information was not public

Tipper

person who gives the tip

Trespass

person without permission enters above or below the surfaces or causes something to enter above or below the surface of another's real property

Libel

written statement of defamation

Intentional tort

wrongful act that was knowingly committed

Unintentional tort

wrongful act that was not knowingly committed

Defamation

wrongfully hurting a person's good reputation by stating an untruth

Blackmail

wrongfully obtaining assets by threat

Extortion

wrongfully using public office to obtain assets from a victim

Statute of limitations

Depends on crimes as well as other factors such as the triggering event. Time after crime is committed where a person can no longer be trialed for their crime

4 Questions to Tort

Did the defendant owe the plaintiff a duty of care? Did the defendant breach that duty? Did the plaintiff suffer a recognizable injury? Was the defendant's breach the factual and proximate cause of the plaintiff's injury?(NEED TO BE BOTH)

Violent crimes

Homicide, rape, assault

Public order crimes

Intoxication and prostitution

Design Patent

covers ornamental features of a product (14 years)

Plant Patent

covers strains of asexually reproducing plants (20 years)

Utility patents

covers the way something works, how the pieces/parts interact (20 years)

US vs Park

*1974 man of national food store chain, charged and convicted of violating the Federal Food, Drug, and Cosmetic Act of 1938, because of food contaminated by rodents *Man stated he had delegated responsibility for sanitation to "dependable subordinates" and that he had no personal involvement in violating criminal statute *Supreme Court held man to responsibility to ensure the sanitary condition of food he stored and shipped. His conviction was affirmed

Intentional infliction of emotional distress

*Behavior has to be outrageous and intentional You have to prove some type of physical pain or suffering

Star athletica vs Varsity Brands

*Case about copyright infringement *Design of cheerleader uniform *Favor of protecting the design

State vs Casey's

*Cashier sells alcohol to minor *Store claims it was cashier's doing *Store held criminally liable through vicarious liability *Supreme court reverses on appeal because conduct wasn't "authorized, requested, or tolerated"

White vs Samsung

*Commercial shows robot with blonde wig turning letters similar to wheel of fortune *Vanna was awarded $403,000 because commercial made it appear like her

Qualitex vs Jacobson Products Co.

*Company started using a color on its products which was very similar to that used by other company *Supreme Court held that a color can be trademarked as customers might identify a product by its color

Fraud

*Defendant made misrepresentation *Defendant knew the deception *Defendant intended to influence plaintiff to act or refrain *Plaintiff justifiably relied on defendant's misrepresentation *Plaintiff was damaged as a result

Different pleas

*Guilty: I did it *Not guilty: I didn't go it *Nolo contendere: I am not saying I did it but I will accepts the consequences

Digital Millennium Copyright Act (DMCA)

*Meant to adapt copyright law to digital technologies *Significant feature is safe harbor provision that protects innocent online service providers from liability for acts of users *File sharing services such as Napster and Grokster were found liable for infringement

Software and copyrights

*Patent protection might be available for the function or process of the software *Copyright protection might be available for source code and object code

Liebeck vs Mcdonalds

*Person injured by coffee which was too hot *Company had notices of extremely hot coffee *Won $600,000 in punitive damages

Copyright infringement

*Plaintiff must show ownership of copyright and unauthorized copying *For willful infringement and enhanced damages plaintiff must show knowledge or reckless disregard by defendant *Remedies available for successful plaintiffs include injunctions and monetary awards

Palsgraf vs Long Island Railroad

*Plaintiff waiting at train station *Fireworks blow up from guy being pushed onto train *Scale falls on plaintiff *Plaintiff lost because the harm was not foreseeable

4th Amendment protections

*Search warrant *Probable cause

6th Amendment protection

*Speedy/public trial *Impartial jury (facing 6 months of prison) *Informed of all charges against you *Confront all witnesses *Production of favorable witnesses *Attorney

Invasion of privacy

1. Publishes information that places plaintiff in a false light 2. Publicly discloses facts about plaintiff that a reasonable person would find objective or embarrassing 3. Uses NIL of plaintiff without permission for commercial 4. Invaded person's home or private paper

Wrongful interference with a contractual relationship

1. Valid enforceable contract must exist between 2 parties 2. Defendant knew the contract expired 3. Defendant intentionally cause either of the 2 parties of the contract to breach the contract 4. Plaintiff was injured

Work for hire

120 years after creation or 95 years after publication whichever is shorter

Assault

Actions intended to make another person fearful of immediate physical harm. (not touching)

Property crimes

Burglary, larceny, arson, forgery

Defamation per se

Common law has 4 false statements which require no proof of damages in order for the plaintiff to recover. 1. Plaintiff is incompetent and/or immoral 2. Plaintiff has a loathsome disease such as leprosy 3. Plaintiff is sexually promiscuous 4. Plaintiff had committed a criminal act

Comparative fault

Ex. Todd hits George, but George was on his phone so each take a hit of the fault. Todd gets 80% fault and George gets 20%.

Negligence defense

Injury must result for damages to be awarded, and plaintiff must prove causation

Right of due process

Minimum you must be given notice and a hearing before you can be deprived of life, liberty, or property

5th Amendment Protection

Protection from double jeopardy Right against self incrimination Right of due process

Model Penal Code

Purpose, knowledge, recklessness, and negligence

Negligence per se

Violating the law, apartment fire. Plaintiff must prove they were owed a duty of care, defendant committed the conduct prohibited, and statute was designed to prevent injury.

Phishing

accessing another's computer or personal information through electronic deception with the intent to use that information to commit a fraud

Receiving stolen goods

act of receiving property that the defendant knew or should have known was stolen with the intent to deprive the real owner of such property

Causation in fact

act or omission caused the damage

Actual authority

acting with direct knowledge and permission of the corporation

International law

agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

Continuation in part application

allows for new material in the application, not just different claims

Dilution

allows parties to sue when products are not similar even if confusion is unlikely

Dram shop act

allows plaintiff injured by intoxicated tortfeasor to sue the establishment that negligently served too much alcohol to tortfeasor

Continuation application

application with different claims that the 1st patent application filed

Burglary

breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony

Birbery

bribing public officials. Need intent, anything of value can be offered, and crime occurs at the time the bribe is offered

Parody

can be copyrighted but a copyright holder cannot sue the creator of a parody of their work

Stand your ground laws

can use lethal force without retreat if acting in self defense

Castle doctrine

can use lethal force without retreating if attacked in your own home

Double jeopardy

can't be tried for a crime a second time if found "not guilty" the first time

Wrongful interference with a prospective business advantage

can't engage in malicious behavior but only competitive behavior

Miranda vs Arizona

case held that police must advise you of your constitutional rights before subjecting you to custodial interrogation

Keeping the secret

causes of action for disclosure of trade secret

Compensatory damages

compensate plaintiff for loss suffered

Res Ipsa Loquitur

control of a specific company. Ex. Something falls on you at grocery store

Special damages

costs incurred out of pocket

Comparative negligence

court looks at fault of the defendant and compares it to the fault of the plaintiff

Arriangment

court proceeding in which defendant hears charges in court and enters a plea

Theft

crimes involve a defendant either taking the property of another or interfering with their use of it

Actus reus

criminal or guilty act (actual act)

Mens Rea

criminal or guilty mind

Miranda rights

criminal suspect "must be warned prior to any questions that he has the right to remain silent, that anything he says can be used against him in a court, of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desire

Liquidated damages

damages required by state statute and awarded in tort cases

Plea bargaining

defendant and prosecution enter into a deal and the defendant get a more lenient sentence

Initial appearance

defendant appears before judge

Strict liability

defendant engage in severely dangerous activities

Contributory infringement

defendant induces, causes, or materially contributes to infringement (knowledge required)

Criminal trespass

defendant knowingly interferes with another's property rights

Slander of title

defendant makes untrue statement which cause a 3rd party to doubt the plaintiff's ownership of the property

Slander of property

defendant makes untrue statements which decrease the value of plaintiff's property

Vicarious infringement

defendant receives a benefit from infringement and has the liability to control the infringer's conduct (no knowledge requirement)

Public nuisance

defendant's use of property substantially interfere with a group of landowners

Private nuisance

defendant's use of their property interferes the plaintiff's use of their property

Criminal law

defines what a crime is

Cybersquatting

domain name that contains or is very similar to a well known mark

Reasonable care

duty to act with reasonable care towards others based upon a reasonable person standard

Racketeer Influenced and Corrupt Organizations Act (RICO)

enables prosecution of criminal organization bosses for the crimes of their subordinates. The criminal acts are imputed as part of a larger criminal enterprise

Fair use

exception to infringement that considers 4 factors 1. Nature of the use 2. Nature of the copyrighted work 3. Amount and character of portion used 4. Effect of the use on economic value of work

Copyright

exclusive right to exploit certain creative works

Prior art

existing information or concepts which proves the invention is not novel or new

Mistake of law

generally not a defense, citizens are assumed to know the law

Cybercrimes

hacking and phising

Sentencing guidelines

help judge determine the sentence which is imposed

Idea expression dichotomy

if idea cannot be separated from its expression, then no copyright protection

Patent infringement

infringement requires unauthorized making, using, selling, or importing of invention

Scienter

intent to decieve

False Imprisonment

intentional confinement or restraint of another person's activities without justification

Theft of trade secrets

intentional taking, copying, or using another's trade secrets with the knowledge the owner of the trade secret will be injured by such action

Criminal mischief

intentionally causing damage to another's property

Obtaining good by false pretenses

intentionally misrepresenting a material fact to a person in order to persuade another to transfer property

Trespass to personal property

interfering with the use of another's personal property

Involuntary intoxication

intoxication on the part of the defendant was not intentional

Voluntary intoxication

intoxication was brought about by the defendant's intentional acts

Quid quo pro

inventor of a patent has protection, which gives use products (this for that)

Ponzi scheme

investment fraud that involves payments of purported returns to existing investors from funds contributed by new investors

Trade secret

knowledge with economic value that is not generally known or easily ascertainable

Petty offense

least serious kind of criminal offense, such as traffic or building code violation

Patent

legal right to exclude all others from making, using, selling, or importing the invention during the term of the patent

Misdemeanor

lesser crime than a felony, punishable by a fine or incarceration in jail for up to 1 year

Copyright general rule

life of author plus 70 years

Foreign officials

made it a crime to bribe foreign officials to gain a business advantage

Forgery

making or altering a writing with the intent to defraud

Arson

malicious burning of the dwelling of another person

Strict product liability

manufacturers and distributors are held to strict liability for product defects

Punitive damages

meant to punish defendant not necessarily compensate plaintiff

Model penal code test

must prove defendant lacked substantial capacity either to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law as a result of a mental disease

Invitee

must warn of hidden risks and made hazardous situations safe

Licensee

must warn of potentially dangerous situations

Trade name

name a business uses to identify itself

Trademark

name, logo, or other distinguishing characteristics associated with a product (or service if service mark)

Arrest

need a warrant unless there is no time to get one

Self incrimination

need to be read about the Miranda rights

Non obvious patents

no combination of prior art teachings that would be obvious to combine to disclose each and every element of the invention

Battery

no consent to and intentional touching of another person which results in harmful contact or offensive contact (Touching)

Novelty patents

no single teaching from the prior art can disclose each and every element of the invention

Intellectual property

products of a person's creative spirits such as patents, copyrights, trademarks, and trade secrets

Good samaritan protection laws

protect good samaritans against negligence lawsuits

Trade dress

protects aesthetics of a product or packaging if consumers identify mark with a particular owner

Collective mark

protects marks associated with a collective group such as the veterans of foreign wars

Trademark

protects marks associated with products

Service mark

protects marks associated with services

Certification mark

protects marks used to certify goods

International law

protocol allows trademark owners to register their marks at the international level

Conditional

public figures must prove malicious intent on the part of the person making an untrue statement

Entrapment

public official gets the defendant to commit a crime that he or she would not have committed had it not been for overbearing actions of the public officials

Insider trading

purchases or sale of securities on the basis of inside information (Martha Stewart)

Probable cause

reasonable grounds to believe that evidence of a crime is currently located in the place, or on the person to be searched

Apparent authority

reasonable person would have believed that the employee was authorized by the company to act in a certain manner because of representations made by the corporation to a 3rd party

Civil law

relationships between citizens and their government

Negative right

right to legally exclude others from performing certain acts (get off my yard)

Felony

serious crimes that is punishable by death or by imprisonment for more than 1 year

Nominal damages

small amount of damages meant to establish liability

Excuse

society does not condone but determines punishment is less appropriate because of mitigating circumstances

Justification

society generally condones or approves of the act under circumstances

Intervening cause

something that breaks the chain of causation

Mistake of fact

specific intent crimes an honest mistake may negate one of the elements of the offense (walk off with item thinking it was yours)

Immunity

state often wants information from criminals, so the prosecution offers them immunity

Larceny

stealing tangible property with the intent to deprive the owner of the property

Truth

still can't be used maliciously (called defamation by implication)

Trademark infringement

straight infringement occurs when another party is using a confusingly similar mark

Proximate cause

strong enough connection to justify holding the defendant responsible (Foreseeable)

American invents act

switched the US to first to invent patent system to first to file the patent

Robbery

taking property by force, intimidation, or threat of violence with the intent to deprive the owner of the property

Actus Reus and Mens Rea

to be guilty of a crime you need both

Money laundering

transferring illegally obtained money through legitimate people or accounts so that its original source cannot be traced

Embezzlement

type of theft that occurs when fiduciary is lawfully entrusted with personal property of another and then fraudulently takes or uses that property for his or her own gains

Provisional patent application

type of utility patent application which allows protection for 1 year

Hacking

unauthorized access of another's computer with intent to change the settings or access information

Conversion

unlawful taking of another's property

Nuisance

unreasonable interference with property owner's use of the property

Appropriation

use of another person's NIL without their consent for defendant's benefit

Credit card fraud

using credit card information to obtain an unauthorized benefit

Useful patents

very low bar, nearly any commercial utility